Spencer

This is an action to compel the defendant to account for and pay to plaintiff funds alleged to be held by him in trust for the plaintiff, Rebecca Spencer, who departed this life during the pendency of the action, whereupon John C. Spencer, administrator of her estate, was substituted as plaintiff herein. Plaintiff had judgment for $1,071.85 and interest from May 1, 1870, amounting in the aggregate to $2,678.73- and costs. This appeal is from an order denying defendant’s motion- for a new trial. There is -a separate appeal in the same case from the final judgment. The theory of Rebecca Spencer, the then plaintiff in the case, as delineated by testimony at the trial, was: That she was a school teacher at Calistoga, of the age of sixty-nine years. About March 24, 1869, she had- $2,200 in the Bank of California, which she drew with a view of taking it with her the next morning to Napa county, where she expected to loan it temporarily. Being dissuaded from carrying so much money with her, she went' in the evening to the home of Dr. Lucky, an old friend, and also a teacher; and, the doctor being absent, she left $2,160 of the money with his wife, to be by the doctor deposited in a…